GSRTC Vs. JAIMALSING KESARJI BHATTI

JUDGEMENT

(1.) The Gujarat State Road Transport Corporation has invoked Articles 226 and 227 of the Constitution to challenge the order dated 29.3.2006 of the Appellate Authority under the Payment of Gratuity Act, 1972 in Appeal No 41 of 2005; whereby the order dated 16.3.2005 of the Controlling Authority under the same Act to pay to the petitioner Rs. 1,89,720/- by way of gratuity with interest @ 10% was confirmed.

(2.) It is the case of the petitioner that the service of the respondent was terminated for an act which constituted offences of forgery and misappropriation involving moral turpitude and such acts having been committed in the course of employment, the petitioner was entitled to forfeit the gratuity payable to the respondent. Learned Counsel Mr Rawal submitted that due procedure for making an order of forfeiture was not made on account of some confusion, the circular dated 19.7.1991 of the petitioner and pendency of the civil suit filed by the respondent to challenge his dismissal from service. He harped upon the fact that there was no dispute about dismissal of the respondent on account of the misconducts which were proved at the departmental enquiry and the misconducts amounted to offences involving moral turpitude. However, concededly, the petitioner acted on the basis of the unamended provisions of Clause (b) of Sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972.

(3.) Learned Counsel Mr K.M. Paul, appearing for the respondent, submitted that no procedure whatsoever was followed and even no formal order for forfeiture of the whole amount of gratuity was made by the petitioner. He submitted that, by virtue of the amendment of the aforesaid provisions with effect from 1.7.1984, the employer is allowed the discretion to forfeit the amount of gratuity, wholly or partially and that discretion has to be exercised after giving an opportunity of being heard to the affected person and after applying a judicious mind to the facts of the case. He further submitted that the petitioner could and in fact did apply different yardsticks in the matter of forfeiture of gratuity and, therefore, exercise of discretion may be arbitrary in absence of any fixed guidelines in that regard. He, however, fairly conceded that, in the peculiar facts of the case where the civil suit of the respondent challenging his dismissal had become practically infructuous, the respondent would be willing to forgo that part of the amount of gratuity which is equivalent to the loss caused to the petitioner. Therefore, the respondent would not have any objection, if the petitioner were to take a fresh decision after applying a judicious mind to the facts and representation that may be submitted by the respondent.